Bar Associations are Failing Lawyers

There are 33 mandatory state bar associations and 20 voluntary state bars. Each of them is failing their members. They are sometimes slow to react, cede authority to outside groups, and fail to advocate for their members.

This post was edited on January 27, 2014, at the request of the author, who apparently became the target of (some) butthurt bar association officials’ ire soon after this post was published. I really don’t want the author to lose his job because some bar association officials would rather sulk than take his criticisms seriously, so I changed the image I originally chose for the post, removed his byline, and made the edits he requested. It should go without saying that he had nothing to do with this note, and would probably rather I did not include it. —Ed.

Slow to React

Bar associations cannot seem to adapt to changing times. Advances in technology and communications seem to be largely ignored by bar associations that are apparently hoping that the Internet is a passing fad. (Tip: it’s not a fad.)

For example, cloud computing has been in wide use by the public since at least 2006, when Amazon released its Web Services platform. During the same time, mobile computing has become the fastest-growing technology. Mobile phones have outpaced computer sales since 2011 and tablets are set to outpace computer sales by 2015. Smartphones are now used by 88% of lawyers responding to the 2013 ABA Legal Technology Survey Report. Whole ecosystems of communications, storage, and online services have become necessary tools for families, businesses, and law firms.

What have the bar associations done in guiding their members in using this new technology? A scant 15 states have drafted formal ethics opinions on cloud computing. (The American Bar Association web site only lists 14, missing Florida’s recent opinion. It seems the ABA can be a little slow, too.) (Edit: As some commenters have mentioned, 18 states now have ethics opinions on cloud computing.)

There are a few ethical opinions on using cellular phones (see Arizona and Delaware (pdf), for example). All were written before Apple released its first iPhone in 2007. The opinions focus on lawyers speaking with their clients using wireless signals. (At least three ethics opinions banned cellphones for communicating with clients.1 None of these opinions contemplate the storage or accessing of large volumes of data with a smartphone. Some even ruled that using a mobile phone is unethical. Instead, in order to figure out what is ethical, lawyers must reason by analogy. In the event of a complaint, lawyers must hope their bar association’s ethics board will decide that normal smartphone usage is covered by opinions that discussed using email on PCs in the 1990s.

Bar associations seem to be moving — slowly — in the right direction on technology. For example, I’ve participated in RFPs from state bar associations evaluating the security and longevity of my company. These are becoming more common; bar associations are demonstrating greater understanding of business and technical challenges.

Developing these standards is admittedly time-consuming, often requiring the input of bar employees, expert members donating time, and the approval of courts or regulatory authorities. Once complete, ethics opinions remain in force for decades, as changing or repealing them requires the same effort. Because of this, one bar official confided that the best ethics opinions are written prescriptively. A lawyer would be hard-pressed to comply with decades-old ethics opinion that required the use of Word Star for typing documents, for example. That software had a dominant market share in the 1980s, but has not been available since the early 1990s. To avoid such dilemmas, opinions do not recommend a specific tool, just standards they believe will protect both lawyers and their clients.

Ceding Authority

Bar associations not only struggle to keep up with modern times, they struggle to maintain their authority to protect the public, the courts, and their profession from encroachment by outside parties. My biggest area of concern has been in the education of young lawyers.

In the early 1920’s, the ABA began to accredit law schools independently. In 1952, the United States Department of Education certified the Council and Accreditation Committee of the ABA Section of Legal Education as the nationally-recognized accreditation authority for law schools. Today, most states require that applicants be graduates of ABA-accredited law schools before they can take the state’s bar examination. To be ABA-accredited, schools must fully comply with the ABA Standards and Rules of Procedure for Approval of Law Schools.

What’s missing from this setup is any oversight by state bar associations. They simply assume that the standards established by the ABA are sufficient for their states’ needs. Law schools have long been accused of not preparing students to actually practice law, but bar associations could set different (higher) education standards than the minimums created by the ABA. Much like Texas and California control the textbook market, a few motivated state bar associations could impose requirements that every school would soon follow.

Clients are also flocking to alternative services because they are uninformed about the benefits of hiring lawyers. Lawyers have voluntarily agreed to duties and responsibilities undertaken on behalf of their clients. These duties include diligence, confidentiality, and fiduciary obligations. And there are consequences for violating these duties.

If you screw up, your client can sue you under well-defined and well-litigated legal standards. This is a protection scheme for clients; one that they cannot get from alternative services. In business marketplaces, this protection scheme is a type of business-differentiator. Lawyers may offer the same products as these new competitors, but we also offer protections they do not.

What have bar associations done to communicate these protections to the public?

I have seen no advertising campaigns, no editorials in the paper, no clever online campaigns extolling the virtues of choosing a lawyer over an app. This is a simple case to make, and bar associations are best-positioned to make it.

Fixing this Mess

Bar associations need to stop thinking they are inviolate entities. Bar associations have unique power to shape the changing legal landscape. They can shape the future for lawyers, courts, and the public. There are two possibilities for increasing the value bar associations offer. The first is that lawyers make up these organizations. Bar associations can organize their members to fight for their interests. Bar associations can respond quickly to the many issues making the practice of law difficult.

One example of how this might looks is the recent walkout by members of the UK’s Criminal Bar Association. When the government of the UK proposed to cut funding for legal aid (meaning the UK’s version of public defenders) by 30%, barristers and solicitors staged a half-day walkout. And they were right to do it. Fees for criminal cases were already cut by 40% in 1997. Could you survive a 70% paycut?

Various bar associations, like the Criminal Law Solicitors Association, Criminal Bar Association, London Criminal Courts Solicitors Association and Legal Aid Practitioners’ Group all coordinated their actions for this walkout.

This is how an active, involve body responds when a bar association engages their members.

The other option for reforming bar associations is to reorganize them to overcome institutional obstacles. The UK reviewed the lack of competition in legal service providers in 2001. The UK found that allowing bar associations to control legal services was inefficient. “The current framework is out-dated, inflexible, over-complex and insufficiently accountable or transparent ….”

Sound familiar?

In July 2003, Sir David Clementi was appointed to carry out an independent review of the regulatory framework for legal services in England and Wales. The resulting Clementi Report of 2004 recommended stripping the existing bar associations of their regulatory powers.

In their place, separate organizations were to be created. These organizations have the separate focuses of regulatory and representative functions. For example, solicitors in the UK now have the Law Society and the Solicitors Regulation Authority. The Law Society represents solicitors in England and Wales, lobbying the profession’s regulators, government and others. The Solicitors Regulation Authority set the standards for qualifying as a solicitor, monitor law schools, provide guidance on ethical issues, laws and regulations that affect solicitors’ work.

Fighting for the interests of their members, focusing on strong education and standards, these organizations seem to be focused on the very things lawyers need.

So the choices before bar associations are simple: fight for their members or be replaced by groups that will.

Several commenters both on Lawyerist, and elsewhere, made the point that this article applied criticism to bar associations with too broad a brush.

This is true, and I apologize.

Bar associations are not a single type of entity, but come in many different constructions. Some are created by statute; some are created by their Court, and all of them possess hard-working employees and members volunteering their time. Depending on their unique structure, they may not have the authority to issue ethical opinions or impose educational standards. Often, the speed with which they can move depends on outside actors, like courts and legislatures.

I also appreciated Ken Shigley’s informative comment on how monumental efforts by bar association employees and volunteers are often stymied by outside forces. I believe the structural changes that the UK bar associations are undergoing are meant to give these associations means around those obstacles.

Finally, my goal with this article was discuss how to create the best experience for lawyers. Mainely Law stated it best in the comments below. Mainely Law likes the Maine Bar because, “[the Bar] makes it far easier for us to practice law, and that is what I need most.”

I think this is goal shared by myself, other lawyers, and bar associations – a desire to make it easier to practice law.

And if every lawyer can say this about their bar, what would be left to criticize?

12 Comments

Looking from the outside at what may appear to be monolithic institutions, it is easy to overlook the structural differences in bar organizations in various states, the fact that bar leaders are elected for one-year terms as volunteers to address issues that require full-time sustained effort for many years, and the broad range of bar responses to the issues addressed.

I served as president of the State Bar of Georgia in 2011-12. I was at that point “of counsel” with a small law firm, essentially continuing my solo practice but housing it at a firm with some infrastructure. While I had a Bar expense account, there was no financial support from any source other than my own billings while serving as bar president. Therefore, I essentially had two full-time jobs, one of which did not pay. We sometimes refer to that as the year without income.

One of the first things I did upon becoming State Bar president was to appoint a Technology Advisory Committee filled with stellar lawyers who practice in the technology field. Having launched the first lawyer website in the Southeast and having been my own webmaster from then until 2003, that was a good fit.

Regarding responses to cloud computing, we reviewed the NC Bar’s excellent study on the ethics of cloud computing and did not see any need to repeat that effort. Cloud computing is a fact of life that the legal profession should embrace while performing due diligence on security and privacy issues. In my own practice during my bar presidency, I used a cloud service that had bank level security with all servers in the US. Later, I switched to a private cloud with the server located in my own office but accessible through encrypted laptops wherever I and my staff may go. Before and after my bar presidency, I have spoken to continuing legal education seminars in Georgia on this topic.

Regarding mobile computing, we completely revamped the bar web site with a view to making everything accessible on a full range of mobile devices. Rather than developing apps for specific devices, we have a mobile version of the website that makes the most often used sections of the site – member directory, calendar of events and bar office connections — readily available in mobile format. That is a great convenience to our members who can click to call or email from their mobile devices. We created a web infrastructure with the capacity for adding instructional video content, etc., to build upon in future years.

One of my major objectives as bar president was to push for a statewide electronic court filing system. To that end, I appointed a Next Generation Courts Commission to facilitate cooperation between judges, clerks, administrators and practitioners across the judicial system. A lot of good work came out of that but we may be no closer to a statewide e-filing system.

Georgia does not have a unified court system even though the state constitution calls for it. As a legacy of 19th century agrarian local politics, we have 159 counties, some of which have as few as 4,000 people. Each county has an elected clerk of Superior Court. In their statewide organization each of 159 clerks has an equal vote so a few senior rural clerks dominate the Clerks Council and Association, which in turn dominate the Superior Court Clerks Cooperative Authority. Clerks in metro counties generally favor development of a statewide e-filing system, but the “good old boys” who dominate the clerks association statewide do not for a variety of reasons related to money and power. If a Clerk in a county tries to cooperate with the Bar and Judicial Council, the Clerks Association politicos can always recruit a primary opponent. If a legislator goes out on a limb to push for better technology in the court system, they can recruit an opponent against that legislator. Now the Judicial Council and the Clerks Council have separate committees on e-filing that work in parallel without notable cooperation.

No State Bar president with a one-year volunteer term can overcome that. I tried hard but they knew they could wait me out and punish any elected official who cooperated with us.

On the point of “ceding authority,” I am confused. The Bar cannot exercise authority it does not have. In Georgia and many other states, the Bar is organized by legislation under the authority of the Supreme Court. The Bar cannot seize authority it does not legally have. Every amendment to bar rules must be approved by the Supreme Court, which is not a rubber stamp. We are fortunate to have an excellent relationship with the Court but perspectives and priorities are not always identical.

Regarding education of young lawyers, you must recognize the splintered nature of governance. The American Bar Association deals with law school accreditation. No single volunteer State Bar president with a one year term can make a dent in that structure. In Georgia, the Board of Bar Examiners is appointed by the Supreme Court. While housed in the State Bar building, the Bar is only a sibling organization, not a parent organization with any control. The Institute for Continuing Legal Education is a separate organization with interlocking leadership. It offers a broad range of seminars, mostly at the State Bar building. Half of the required minimum 12 hours per year may be earned online. Immediate past presidents of the State Bar, who are by then exhausted from full-time volunteer service, serve as chair of the ICLE Board of Trustees.

Regarding advocacy for members vis-a-vis other “legal services,” you must recognize the limitations imposed by the Federal Trade Commission. Every State Bar organization operates in the shadow of the potential for the FTC to swoop in with an antitrust investigation when the bar acts to protect lawyers from non-lawyer competition. We were faced with the problem of “witness only” real estate closings on behalf of online mortgage lenders that eviscerated much of the residential real estate closing practice. When this was an issue years earlier, the FTC subpoenaed records and emails of both the Bar and members of the executive committee. The response to that subpoena created a huge amount of angst, loss of productivity for every volunteer member of the executive committee, and direct cost over $100,000. In the shadow of the FTC, anything the Bar did to help the residential real estate lawyers had to be in terms of encouraging state action by the legislature and Supreme Court as state action is not subject to FTC antitrust actions. We did participate in lobbying for legislation requiring that residential closings involve a Georgia lawyer’s trust account, but we could not take action directly as the Bar.

It is thus a struggle for bar organizations to effectively respond to online providers such as LegalZoom. We can lobby our legislatures but again we labor under the shadow of the FTC antitrust enforcement authority.

The idea of running TV ads to educate the public sounds good. We have done some of that in Georgia. But bar organizations can never spend as much on ads as the companies to whose ads we would be responding. In Georgia, we have public information spots on TV regarding judicial funding and other issues. But our maximum ad buy in the years of greatest crisis in court funding was a drop in the bucket.

We considered running spots about how to intelligently select a lawyer but realized the most we could possibly spend would be a tiny fraction of what is spent every year by a few personal injury mills. Could more be done on that even though it is expensive? Perhaps. I commend that to future bar leaders.

Mandatory pro bono service or financial contributions to legal aid is a hot button issue. We have struggled with that for years. We have always supported the campaigns of Georgia Legal Services Program and Atlanta Legal Aid. GLSP has long collected voluntary contributions through a check-off on the bar dues statement. The consensus of bar leaders in Georgia has been that imposing mandates upon all members would weaken both the institution of the Bar and financial support for our legislative advocacy program on behalf of the court system and legal profession.

Having completed my cycle of bar leadership, I am back to just practicing law, taking care of my family and participating in a few limited bar projects. I hope the points made in your post, combined with my observations, may be helpful to future bar leaders.

Whoa, that’s a whole lot of vitriol for one blog post. As my 17-year-old would say, Stop hating on me!

Ken Shigley did a good job responding to some of your points. Not only is there no need to reinvent the ethics opinions of other bar associations, many state bar associations have no authority to issue ethics opinions. That’s typically a function of the discipline system. An integrated bar may have responsibility for that but voluntary bars typically do not.

The same goes for overseeing admission to the bar and deciding what standards law schools should meet. Perhaps you meant to write a post about how bar examiners or state supreme courts are failing their attorneys.

As the President of a local bar association this year, I would love for our bar to run an advertising campaign for lawyers along the lines you suggest. But given a choice between a three-week advertising campaign and a staff-member’s salary for a year, we tend to choose keeping staff because that is how we provide services to members. That is how bar associations coordinate substantive law sections, put on CLEs, organize social events, support the bench, lobby for legislation, sponsor clerkship programs, support new lawyers, teach high school students about the law, operate lawyer referral services, coordinate and / or fund pro bono services, certify legal specialists, provide practice tools, and on and on. Not every bar association does all of these things but many of them do far more than you appreciate.

I agree that bar associations should become nimbler and adapt quickly to change. But lawyers are slow to change (as an employee at Clio, I bet you’re well aware of that). Bringing our members along takes time and energy as well. I’m sure your local bar association would love to have you devote some of your energy and passion for the profession to their efforts to improve their association, rather than just yelling at the team from the stands.

@Eric, thank you for a summary of Ken’s detailed explanation of why Bar Association’s have difficulty adapting at the pace of the market as well as what may or may not actually be under their control.

Since you are approximately halfway through your term as the 95th president of the Hennepin County Bar Association. What has been your focus this year and what do you hope to accomplish or put into motion before your term is up? What do you think would be a reasonable compromise to insure the bar association’s ability to provide value to it’s members and relevance in the future?

@Josh, This article although a little filled with fire and brimstone in my opinion is a great way to start a discussion on the value of bar associations, and how they can maintain relevance in the future.. If that was your goal. I believe you have succeeded.

One of the very best ways in which a bar association can better meet the diverse needs of its membership is to ask members what is important to them by conducting a member satisfaction survey. The bar then needs to objectively evaluate member feedback, commit to taking action, and set priorities. It is imperative the bar share the results with members, publicize them in bar journals, and communicate a summary on their website. Bar associations need to open a dialogue around how, as an institution run by a revolving door of good-intentioned volunteers, they can better meet member needs. Only then can we move beyond the artistic interpretation of what a bar association’s value, role, and mission should be.

I have had the opportunity to work with many bar associations across the country including the State Bars of California, New York, Ohio, Wisconsin, Massachusetts, New Jersey and others. I also served as chair of the MSBA’s Marketing and Client Service Section. I can assure you the sole priority of these bar associations is to better meet the needs of members in an environment where myriad expectations abound on specific services a bar association should offer.

In organizations run primarily by volunteer attorneys, I know how challenging it can be to engage volunteers (committee chairs, committee members, subcommittee volunteers) to be proactive and to follow through on a timely basis. As Eric and Ken note below, serving in a leadership position requires a significant non-billable commitment not unlike lawyers who step up and serve as managing partners of their law firms.

Bar association leaders also enter their one-year terms on a platform of change stemming from the legacy they want to leave. There is generally very little cohesion from one leader to the next. It’s not about longer terms (see non-billable comments above). Rather, I submit that bar associations need to provide the high level strategic umbrella under which leaders come and go; but all are united in their quest to improve the satisfaction of members within the bar associations they serve.

The criticism does not apply to most voluntary bar associations, and definitely not to the Maine Bar Association. I’m a long-standing member, but never an officer and my views are my own. My bar does not regulate admission or discipline nor does it render ethical opinions. It provides first class CLE programs, provides helpful benefits and does a great job advocating at the legislature and elsewhere. The vast majority of Maine lawyers are solos or in small practices, and the Maine Bar makes it far easier for us to practice law, and that is what I need most.

Great post to stoke the discussion. Especially appreciate the focus on the lack of lobbying from the legal profession by the bar associations. After participating in a lobbying effort for patent reform at the Capitol in D.C. in 2013, I understand exactly the point you’re making: the walls are coming down in the legal profession, and alternative services are winning. Lawyers have standards they must uphold — we’re forced by ethics rules to be held to a different standard, thus making the competition inherently unbalanced. Bar associations are there not only to provide benefits like CLEs and networking, but to represent their constituents. Campaigns extolling the virtues of choosing a lawyer over a third-party non-lawyer service are long overdue.

Hello, I want to thank everyone for their constructive criticism on this article. I’m actively working to replace this article with a version that is more accurate of the realities faced by bar associations.

In addition to those edits, I’m asking the Lawyerist to include this statement in the revised article:

“Several commenters both on Lawyerist, and elsewhere, made the point that this article applied criticism to bar associations with too broad a brush.

This is true, and I apologize.

Bar associations are not a single type of entity, but come in many different constructions. Some are created by statute; some are created by their Court, and all of them possess hard-working employees and members volunteering their time. Depending on their unique structure, they may not have the authority to issue ethical opinions or impose educational standards. Often, the speed with which they can move depends on outside actors, like courts and legislatures.

I also appreciated Ken Shigley’s informative comment on how monumental efforts by bar association employees and volunteers are often stymied by outside forces. I believe the structural changes that the UK bar associations are undergoing are meant to give these associations means around those obstacles.

Finally, my goal with this article was discuss how to create the best experience for lawyers. Mainely Law stated it best in the comments below. Mainely Law likes the Maine Bar because, “[the Bar] makes it far easier for us to practice law, and that is what I need most.”

I think this is goal shared by myself, other lawyers, and bar associations – a desire to make it easier to practice law.”

As I’ve said elsewhere, it is my belief that bar associations are the only groups with the power to shape the changing legal landscape. They can shape the future for the betterment of lawyers, courts, and the public. My hope was to engender discussion on the role of bar associations in creating that future.

It is fantastic to see the discussion generated by this blog post and to read the thoughtful commentary of so many about the challenges local and state bar associations face in continuing to stay relevant and valuable to our members and the profession.

Although I serve as the current President of the Bar Association of San Francisco (BASF), the work we do as a bar is the product of the efforts and engagement of our entire membership. Our tradition of active engagement has never been solely “top down” from our bar leadership. To the contrary, our success is due almost entirely to the active engagement of a significant cross section of our membership. It is this active engagement of many members throughout our bar, together with a strong and dedicated staff, that allows us to make a difference across a diverse range of issues that matter to our members, despite the limitations we (like all bars) face in financial and other resources.

The work we do is as varied as our members – legislative efforts to support court funding and to expand the “Right to Civil Counsel” for low income individuals and families, volunteer and pro bono work in our community, work to gather data and set goals and timetables for diversifying our profession, nationally-recognized educational programming for our members, opportunities for engagement with each other and with our bench, work to “Mind the Gap” between law school and the profession . . . the list goes on and on.

More recently, with the growing importance of technology in the legal profession, BASF launched its “Tech Tuesday” monthly seminar series featuring speakers addressing hot topics such as cloud computing, blogging, and using infographics and social media for one’s practice. BASF is also extremely active on social media connecting its members through Facebook, Twitter, and LinkedIn. Our Online CLE program which we built from the ground-up has grown exponentially over the last few years as more and more attorneys take their continuing education via the computer.

BASF is acutely aware of the demographic shift within the workplace as Gen X and Gen Y become the majority. As an organization, we are constantly striving to bring value to our members and meet their ever-changing needs.